Blog: Housing – The Other Supreme Court Case

Nicholas Moffa

Jun 26, 2015

All anyone has been talking about has been the Supreme Court recently, specifically its decisions on the Affordable Care Act subsidies and same-sex marriage. Yet there was a third, less-publicized decision that will also impact millions, though less directly than the two previous cases. The case is entitled Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; in its decision, the Supreme Court protects the use of disparate impact analysis under the Fair Housing Act of 1968.

Some background: the Texas agency is being challenged over the methodology it uses to select construction sites for its low-income subsidized housing. According to the prosecution, said methodology reinforces housing discrimination that results in “segregated living patterns.” The defense, on the other hand, argues that their construction decisions are not racially-motivated. If the judges were to apply disparate impact analysis, the motivation behind the methodology wouldn’t matter; on the contrary, if they deemed such analysis inapplicable, the Texas agency would win the case.

What is disparate impact analysis? “Disparate impact analysis considers whether policies or practices have a disproportionate and deleterious impact on protected populations such as people with disabilities, women, families with children, or people of color.” However, a disparate impact charge only seeks to end those practices that serve no legitimate business need or serve a business need that could be accomplished with less harm done. In other words, if a policy “accidentally” discriminates, but it is for a legitimate business reason that can be done no other way, it can be maintained.

Why is this type of analysis so important? Well, the answer lies both in history and in our modern-day reality. Throughout our nation’s history, disparate impact analysis has helped end all types of discrimination. Additionally, since residential and housing discrimination tends to be very subtle in the twenty-first century, disparate impact analysis is vital to ensure equal treatment of all potential tenants and residents.

So what happened in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project? In a 5-4 decision, the Supreme Court ruled that housing policies can still be designated as discriminatory based on disparate impact analysis, upholding years of precedent and ensuring people can still, in the words of the Court, “counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”

Overall, this is a vitally important decision by the Supreme Court and one that will help ensure that our work in moving towards the creation of a more just society can and will continue.

All anyone has been talking about has been the Supreme Court recently, specifically its decisions on the Affordable Care Act subsidies and same-sex marriage. Yet there was a third, less-publicized decision that will also impact millions, though less directly than the two previous cases. The case is entitled Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; in its decision, the Supreme Court protects the use of disparate impact analysis under the Fair Housing Act of 1968.

Some background: the Texas agency is being challenged over the methodology it uses to select construction sites for its low-income subsidized housing. According to the prosecution, said methodology reinforces housing discrimination that results in “segregated living patterns.” The defense, on the other hand, argues that their construction decisions are not racially-motivated. If the judges were to apply disparate impact analysis, the motivation behind the methodology wouldn’t matter; on the contrary, if they deemed such analysis inapplicable, the Texas agency would win the case.

What is disparate impact analysis? “Disparate impact analysis considers whether policies or practices have a disproportionate and deleterious impact on protected populations such as people with disabilities, women, families with children, or people of color.” However, a disparate impact charge only seeks to end those practices that serve no legitimate business need or serve a business need that could be accomplished with less harm done. In other words, if a policy “accidentally” discriminates, but it is for a legitimate business reason that can be done no other way, it can be maintained.

Why is this type of analysis so important? Well, the answer lies both in history and in our modern-day reality. Throughout our nation’s history, disparate impact analysis has helped end all types of discrimination. Additionally, since residential and housing discrimination tends to be very subtle in the twenty-first century, disparate impact analysis is vital to ensure equal treatment of all potential tenants and residents.

So what happened in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project? In a 5-4 decision, the Supreme Court ruled that housing policies can still be designated as discriminatory based on disparate impact analysis, upholding years of precedent and ensuring people can still, in the words of the Court, “counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.”

Overall, this is a vitally important decision by the Supreme Court and one that will help ensure that our work in moving towards the creation of a more just society can and will continue.